Specify the version of arbitral rules if you do not want to be bound by changes. Apply to set aside awards within the statutory time limit.

A single judge, Reyes IJ, of the Singapore International Commercial Court (SICC) has refused to set aside an arbitral award because the application to set aside was out of time and the award was made under the Expedited Procedure in a later version of the SIAC Rules.

Singapore is an ever-increasing seat for international commercial arbitration and it is essential to understand SICC’s power and approach to setting aside arbitral awards.

In BXS v BXT [2019] SGHC(I) 10, an unsuccessful claimant applied to set aside an award on the basis (among others not material here) that it was made by a sole arbitrator instead of three arbitrators, as expressly required by the arbitration agreement. The respondent countered that the application to set aside was made late – two months after the expiry of the statutory three-month period.

Sole Arbitrator Point

The award was made by a sole arbitrator under the Expedited Procedure, introduced for the first time in the 2016 version of the SIAC Rules. The arbitration agreement was made before that version was published but did not specify which version of the rules applied. The claimant argued that the version at the time the arbitration agreement was made only contemplated three arbitrators and, therefore, an award by one arbitrator was contrary to that agreement. Justice Reyes held that the rules in force at the time of the commencement of the arbitration applied if the arbitration agreement did not specify a particular version. Parties are often content with this result to take advantage of developments in rules, but, if not, the version should be specified in the agreement.

Time Point

The award was made in June 2018 and the application to set aside in November 2018, with the claimant making an unsuccessful application to the Thai courts in the meantime to set aside the award. Applicants’ rights to set aside an award terminate three months after the award is made by virtue of Article 34(3) of the Model Law. Justice Reyes held that the general powers to extend time under the Supreme Court of Judicature Act (Cap 332, 2007 Rev Ed) did not apply because the right to set aside was extinguished and could not be revived. Even had he the power, Justice Reyes would not have extended time because of the length of the delay, the absence of a good reason and the lack of merits in the application.

Jurisdiction Comment

In passing, Justice Reyes questioned why the claimant applied first to the Thai courts to set aside the award rather than to the Singapore courts. The award was to be enforced in Thailand, but the arbitration was seated in Singapore, and Justice Reyes did not see the application to the Thai courts as a good reason for the delay in applying in Singapore.

Conclusion

If you do not want to be bound by later changes to the arbitral rules, specify which version applies with words such as “the SIAC Rules as in force at the date of this agreement”. Applications to set aside arbitral awards in Singapore must be made within three months after the award is made and there is no power to extend that time